Madhya Pradesh High Court
Devika Choudhary vs The State Of Madhya Pradesh on 26 April, 2022
Author: Pranay Verma
Bench: Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 26th OF APRIL, 2022
WRIT PETITION No. 9662 of 2022
Between:-
DEVIKA CHOUDHARY D/O SHRI SANJAY
CHOUDHARY, AGED ABOUT 31 YEARS,
OCCUPATION: BUSINESS ADDRESS - E-13, SAKET
NAGAR, INDORE (MADHYA PRADESH)
.....PETITIONER
(BY SHRI RAGHWENDRA SINGH CHHABRA, SENIOR ADVOCATE
ALONG WITH SHRI MUDIT MAHESHWARI, ADVOCATE )
AND
1. THE STATE OF MADHYA PRADESH PRINCIPAL
SECRETARY VALLABH BHAWAN-2 BHOPAL
(MADHYA PRADESH)
2. COLLECTOR / DISTRICT MAGISTRATE
COLLLECTORATE MOTI TABELA. INDORE
(MADHYA PRADESH)
3. SUB DIVISIONAL OFFICER. (REVENUE) TEH.
MALHARGANJ, COLLECTORATE, MOTI TABELA.
INDORE (MADHYA PRADESH)
4. TEHS ILD AR COLLECTORATE, MOTI TABELA.
INDORE. (MADHYA PRADESH)
5. REVENUE INPSECTOR BADA BANGARDA, TEH.
MALHARGANJ, COLLECTOR MOTI TABLEA.
(MADHYA PRADESH)
6. BHAVYA CHOUDHARY D/O SHRI VIJAY KUMAR
CURRETNLY RESIDING AT INDRADARSHAN
BUILDING 19, NEAR MITTAL NAGAR, NEW LINK
ROAD, ANDHERI (W) (MAHARASHTRA)
7. DIVYA CHOUDHARY D/O SHRI VIJAY KUMAR
C H O U D H A R Y CURRENTLY RESIDING AT
INDRADARSHAN BUILDING 19 NEAR MITTAL
NAGAR, NEW LINK ROAD, ANDHERI, (W)
(MAHARASHTRA)
.....RESPONDENTS
(BY SHRI PRADYUMNA KIBE, GOVT. ADVOCATE FOR RESPONDENTS NO.1 TO 5 ON ADVANCE NOTICE) T h is petition coming on for admission this day, the court passed the following:
Signature Not Verified SAN Digitally signed by JYOTI ORDER CHOURASIA Date: 2022.04.30 12:48:35 ISTHeard on the question of admission.2
By this petition preferred under Article 226 of the Constitution of India, petitioner has challenged the order dated 11.04.2022 (Annexure P/6) passed by the Sub-Divisional Officer (revenue), Tehsil Malharganj, District-Indore. Prayer has also been made for directing the team constituted by order dated 25.10.2021 to submit its demarcation report.
02. As per the petitioner, she is the owner of survey No.3/2/1 at Gram Nainod, Tehsil Malharganj, District Indore. Respondents 6 & 7 are owners of land bearing survey No.3/1/1 and 3/1/2. They moved an application under Section 129 of M.P. Land Revenue Code, 1959 (for short 'the Code, 1959') for demarcation of their lands. The demarcation was carried out by the Revenue Inspector and was confirmed by the Tehsildar vide order dated 07.01.2021.
03. Being aggrieved by the said order, the petitioner preferred an application under Section 129(5) of the Code, 1959 before the Sub-Divisional Officer, which was allowed by order dated 25.10.2021 and the demarcation order dated 07.01.2021 was set aside. A team consisting of three revenue authorities was constituted for re- demarcation of the lands. The said team completed its demarcation. However, before the demarcation report could be submitted respondents 6 & 7 preferred W.P. No.27542 of 2021 and W.P. No.27563 of 2021 against order dated 25.10.2021 before this Court.
04. By order dated 14.12.2021, this Court directed the parties to maintain status quo which order was eventually discontinued on 01.04.2022. Thereafter, the petitioner learnt that by order dated 11.04.2022, the Sub-Divisional Officer has constituted a new team for the purpose of carrying out the demarcation which was sought to be done on 22.04.2022.
05. Learned counsel for the petitioner submits that once a team had been constituted for the purpose of carrying out the demarcation the same could not have been altered by the Sub-Divisional Officer as has been done by the impugned order moreso when the earlier constituted team had already conducted a demarcation whose report could however not be submitted as earlier demarcation Signature Not Verified SAN proceedings were challenged by respondents 6 & 7 before this Court. The order Digitally signed by JYOTI CHOURASIA Date: 2022.04.30 12:48:35 IST appointing a new team for demarcation amounts to review of previous order of 3 constituting such a team which could not have been done as powers of review were not available with the Sub-Divisional Officer.
06. Per contra, learned counsel for respondents 1 to 5/State submits that order dated 11.04.2022 is in fact not a judicial order but is only an administrative order reconstituting the team for the purpose of carrying out demarcation hence no permission was required for passing such an order. Since the impugned order is not a judicial order no prejudice is caused to the petitioner only by alteration of the team constituted for carrying out the demarcation.
07. I have heard the learned counsel for the parties. It is seen that by order dated 25.10.2021, the application filed by the petitioner under Section 129(5) of the Code, 1959 was allowed and a team was constituted by the Sub-Divisional Officer consisting of three Revenue Officers for carrying out fresh demarcation. Though, it is contended that the said team carried out the demarcation on 27.10.2021 but no document has been brought on record in proof of the said fact. Even if the such demarcation had been carried out, then the same was not approved/confirmed by the Tehsildar. There was thus no finalized demarcation proceedings conducted by the team constituted by order dated 25.10.2021.
08. A bare perusal of the order dated 11.04.2022 reveals that a fresh team of Revenue Officers has been constituted for carrying out demarcation of lands in dispute which is purely an administrative order and cannot in any manner be said to be a judicial order. The earlier constituted team has merely been re-constituted. The purpose of both the teams is for carrying out demarcation. As no finalized demarcation was done by previously constituted team, no prejudice is caused to the petitioner merely for re-constitution of the team hence interference in the same in exercise of powers under Article 226 of the Constitution of India is not warranted.
09. As per Section 43 of the Code, 1959 the procedure laid down in Code of Civil Procedure, 1908 has been made applicable to the proceedings under the Code, 1959. The said provision reads as under:
Signature Not Verified"43. Code of Civil Procedure to apply when no express provision made in SAN this Code- Unless otherwise expressly provided in this Code, the procedure laid Digitally signed by JYOTI CHOURASIA Date: 2022.04.30 12:48:35 IST down in the Code of Civil Procedure, 1908 (V of 1908) shall, so far as may be, be 4 followed in all proceedings under this Code."
10. The term order has been defined under Section 2(14) of the CPC which reads as under:
"Order " means the formal expression of any decision of a Civil Court which is not a decree ;
11. In light of above definitions when the impugned order is tested, it is apparent that the same is not in any manner an order whereby any decision in the matter has been given. No rights of the parties have been adjudicated by the said order. There is no expression of any decision. No review of any previous order has been made. Since the impugned order is not an order as contemplated under the Code, 1959, no permission was required prior to passing of the same. The contention of the petitioner that prior to passing the impugned order permission from higher authority for taking up the order dated 25.10.2021 in review was required thus has no merit.
12. Consequently, no case warranting interference in the impugned order has been made out by the petitioner. The petition fails and is accordingly dismissed.
(PRANAY VERMA) JUDGE jyoti Signature Not Verified SAN Digitally signed by JYOTI CHOURASIA Date: 2022.04.30 12:48:35 IST